Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Stephens v. Chairman PA BD
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4344




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                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                             NO. 04-4344
                          ________________

                        MICHAEL STEPHENS,

                                   Appellant

                                   v.

THE CHAIRMAN OF THE PENNSYLVANIA BOARD OF PROBATION AND
     PAROLE; ROBERT W. MEYERS, Superintendent, SCI-Rockview;
     FRANKLIN J. TENNIS, Deputy Superintendent; A. C. BIVIANO,
         Deputy Superintendent; RAY J. COFFMAN, Correctional
        Program Manager; JEFFREY A. RACKOVAN, Corrections
        Superintendent Assistant; Lt. EATON, Correctional Officer;
    SYMONS; C. MITCHELL, Hearing Examiner; ELLERS, Mr., Health
      Care Administrator; C.O. VANGORDER; ROBERT S. BITNER

               ____________________________________

             On Appeal From the United States District Court
                 For the Middle District of Pennsylvania
                       (D.C. Civ. No. 04-cv-00442)
               District Judge: Honorable Sylvia H. Rambo
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                           October 12, 2005

       BEFORE: ROTH, McKEE and ALDISERT, CIRCUIT JUDGES

                          (Filed April 6, 2006)
                               _______________________

                                      OPINION
                               _______________________
PER CURIAM

       Michael Stephens appeals the District Court’s order granting appellees’ motion to

dismiss as well as the District Court’s order denying his motion for reconsideration.

Stephens filed a complaint alleging that he had been granted parole. However, before he

was released, he received a misconduct because his urinalysis had come back positive for

alcohol. Stephens asserted that the misconduct was dismissed because the hearing

examiner called the medical department and learned that Stephens was diabetic.1

Stephens alleged that appellee Lt. Eaton then rewrote the misconduct. She stated that she

and appellee Dr. Symons had reviewed Stephens’s medical records and determined that

there was nothing in them which indicated he was diabetic. Stephens stated that the

Parole Board interviewed him and gave him a one-year hit. Stephens alleged his rights to

procedural due process were violated by appellees’ actions. In response to the appellees’

motions to dismiss, Stephens also argued that his right to privacy in his medical records

had been violated. The District Court adopted the Magistrate Judge’s recommendation

and granted the motions. Stephens filed a motion for reconsideration which the District

Court denied. He filed a timely notice of appeal and we have jurisdiction pursuant to 28

U.S.C. § 1291.


   1
    Stephens appeared to allege that the urine of diabetics can have alcohol-like
characteristics.
                                             2
       We exercise plenary review over the District Court’s order granting appellees’

motion to dismiss. Gallo v. City of Philadelphia, 

, 221 (3d Cir. 1998).

When reviewing a complaint for failure to state a claim, the Court must accept the

allegations in the complaint as true. Hishon v. King & Spalding, 

, 73 (1984).

The Court should not dismiss a complaint unless it is clear that no relief could be granted

under any set of facts that could be proved. 

Court disposed of Stephens’s claim that his right to privacy in his

medical records by discussing the law of claims of deliberate indifference to serious

medical needs. It failed to address this Court’s opinion in Doe v. Delie, 

(3d

Cir. 2001). In Doe, this Court recognized a constitutional right to privacy with respect to

the medical information of prisoners. However, the Court noted that this right was not as

extensive as the right of a free citizen. “We do not suggest that Doe has a right to conceal

this diagnosed medical condition from everyone in the corrections system. Doe’s

constitutional right is subject to substantial restrictions and limitations in order for

correctional officials to achieve legitimate correctional goals and maintain institutional

security.” 

. Because Stephens put his medical condition at issue in

the resolution of the disciplinary charge, we conclude that appellees did not violate his

right to privacy in his medical records.

       With respect to Stephens procedural due process claim, the District Court focused

on the prison disciplinary process but did not discuss whether Stephens had a liberty

interest in his expected release on parole. The Supreme Court has held that an

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expectation of release on parole is not a constitutionally protected liberty interest. Jago v.

Van Curen, 

(1981). In Jago, the inmate had been ordered released on parole

but before he was released, the Parole Board learned that he had not been truthful in his

interview or parole plan. The Board rescinded the inmate’s parole. The Supreme Court

held that the inmate was not entitled to a hearing before his parole was rescinded because,

under Ohio law, the inmate had no liberty interest in parole because it was entirely

discretionary. Under Pennsylvania law, until the Board’s order is “executed,” the Board

may at any time rescind an order granting parole. The Board’s order is executed when

there is an order granting a prisoner’s release and the prisoner signs an acknowledgment

of the conditions of parole. Only then does the inmate have a liberty interest in parole.

Johnson v. Commonwealth, 

, 52 (Pa.Cmmw. Ct.1987). In declining to

dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B), this Court requested that the

parties address, inter alia, whether Stephens’ parole was executed. Stephens has not

alleged that his parole was executed; nor does he challenge the appellees’ contention that

it was not executed. Because the Board’s order was not executed, Stephens did not have

a liberty interest in his release, and his procedural due process claim is without merit.

       In his reply brief, Stephens raises allegations which appear to concern a parole

revocation which occurred before the events in his complaint. Because these issues were

not raised in the District Court, we will not address them here. See United States v.

Anthony Dell'Aquilla, Enters. and Subsidiaries, 

, 335 (3d Cir.

1998)(“[A]bsent exceptional circumstances, an issue not raised in district court will not

                                              4
be heard on appeal.”).

      For the above reasons, we will affirm the District Court’s judgment.




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